Tuesday, November 12, 2013

613 Human Rights judges, lawyers and World Gov't academics call for the Bombing of Syria (as they did of Libya)

Human Rights judges, lawyers and World Gov't academics call for the Bombing
of Syria (as they did of Libya)

Newsletter published on 23 September 2013(1) Geoffrey Robertson, a former UN
judge, calls for the Bombing of Syria(2) Geoffrey Robertson: Assad should
face international justice(3) Bomb Syria, even if it contravenes UN Charter
- Ian Hurd (NYT)(4) Geoffrey Robertson for intervention in Libya(5)
Michael Kirby, for the UN, castigates North Korea for Human Rights
Violations(6) Kenya decides to withdraw from the ICC (World
Court)

(1) Geoffrey Robertson, a former UN judge, calls for the Bombing
of Syria

Now that the U.K. has stunningly backed out of intervention on Syria,
the U.S., France, and others must answer these legal quagmires before
committing to strikes.

David Cameron thought that recalling his
Parliament to approve the bombing of Assad for using chemical weapons would
be a slam dunk. The traditional British reaction to outrages by Johnny
Foreigner has been to “send a gunboat”—especially if this can be done at
U.S. expense.

What Cameron failed to realize was the depth of his
country’s guilt over being suckered by Tony Blair into Bush’s war on Saddam
over nonexistent WMDs. This guilt has deepened over a decade with every
day’s report from Iraq of fresh civilian casualties. So a tipping point came
last Tuesday when Blair himself, in a Murdoch mouthpiece (The Times) called
for the bombing of Syria: politicians of all parties began to be spooked by
their memories of being deceived by fabricated intelligence in dodgy
dossiers. “That was George W. Bush, this is Barack Obama” cried one
veteran (Paddy Ashdown) in exasperation, but in vain. Britain is
unwilling.

That does not relieve the U.S., and other allies like France
unburdened by Iraqi war guilt, of the urgent need to answer three legal
questions:

First, can force be used, without Security Council approval,
to deter Syria from perpetrating further crimes against humanity? Secondly,
how can culpability for mass-murdering a thousand civilians by poison gas be
proved against the Assad regime beyond reasonable doubt? Thirdly, what
punishment can NATO and the Arab League mete out to that government, if
it is guilty, to deter further use of chemical weapons without causing
more civilian casualties or tilting the civil war in Syria in favor of
the opposition?

The first question is easy to answer. There is and
always has been a right to intervene to stop or deter an ongoing crime
against humanity. This was asserted in terms by Oliver Cromwell and his
foreign secretary (the poet Milton) as long ago as 1655, when he threatened
to invade Savoy unless its Duke stopped killing Protestants who refused to
convert to Catholicism. Britain exercised its right of humanitarian
intervention when it stopped the slave trade by intercepting foreign ships
and attacking foreign ports, and it led a coalition of the willing to end
Ottoman atrocities (and liberate Greece) in 1827. As Theodore Roosevelt
put it in 1904 when justifying the American intervention to stop Spanish
atrocities in Cuba, there are occasions when “the indignant pity of the
civilized world” imposes a duty to intervene “against crimes of peculiar
horror.”

All this was long before the U.N. Charter, which did not
affect the right of member states to stop an international crime. Idi Amin’s
mass murder was ended by an invasion unauthorized by the Security Council,
as was genocide and mass rape in Bangladesh. NATO set up safe havens to
protect the Kurds in defiance of Saddam's Iraqi sovereignty, without
bothering to endure a Russian and Chinese veto at the Security
Council.

Kosovo is a good example of legitimate NATO action to end a
crime against humanity—that of Milosevic’s ethnic cleansing. With the
council again pole-axed by the Russian veto, NATO simply began bombing and
Russia was forced to move a motion to condemn it, which failed
miserably. If NATO (minus the U.K. but plus Turkey) and the Arab League
can find a way to punish Assad, which does not involve collateral
damage, they should get on with it and leave Russia on the back foot,
without a Security Council resolution to condemn their action.
International law does not prevent action to stop international
crime.

But, in answer to the second question, there must be proof beyond
reasonable doubt that Assad’s forces were responsible for such a crime.
The U.K. Attorney General talks of “convincing evidence generally
accepted by the international community,” but this is not sufficient.
The Security Council itself is a hopeless tribunal for deciding guilt:
Colin Powell deceived the council (and, it seems, himself) with his
“evidence” for Saddam’s WMDs. The world is sick of “dodgy dossiers” and
does not believe MI6 and the CIA without proof, preferably by way of a
reasoned judgment from a respected tribunal. There could be a decision
by a panel of independent international judges convened by the Secretary
General to decide on Syrian government culpability, excluding any
possibility that the victims seen on television are graduates of the al
Qaeda school of acting.

The key concern of the U.K. Parliament, when
on Thursday night it refused to approve the use of force against Syria, was
over Assad’s guilt. A Joint Intelligence Committee assessment, from open
sources and seeming (but Western-minded) logic, concluded that this was
“very likely”: 75 percent to 85 percent. That would be enough to win a civil
action for damages on the balance of probabilities but not to convict of
a crime “beyond reasonable doubt.” That necessary standard of proof may
be forthcoming from the weapons inspectors (despite John Kerry’s doubts)
when they report in a few weeks’ time. So it might be prudent for the
Obama administration wait for the weapons inspectors, unlike George W.
Bush in 2003, and organize a punishment that fits the crime only when
the crime can be proved? If there is proof in “secret” sources (e.g.,
telephone traffic between Assad and his generals, intercepted by NSA or
the Israelis) then the transcripts will just have to be made public:
after Iraq there can be no reliance on official reassurances unless the
public can examine the evidence for itself.

International law
requires that any intervention to stop crimes against humanity must be
strictly limited and “proportionate” to the objective, i.e., appropriate to
and logically connected with its achievement and not such as might promote
regime change or the death of more civilians. This is easy to state, as a
legal proposition, but may in logistical terms be impossible to achieve.
(Even an attempt to destroy a chemical-weapons dump may be disastrous, if
the poison gas is released into the atmosphere.) How many military bases are
to be attacked? Is NATO going to destroy $1 billion of military equipment
and threaten Assad that, if chemical weapons are used again, it will destroy
$25 billion worth? It is these imponderables that international law cannot
resolve.

The fundamental rules of civilized humanity now include a
prohibition on the use of poison gas against civilians—a prohibition
barbarically breached by Saddam Hussein in 1988 when he gassed 7,000 Kurds
at Halebja, only to be rewarded the following year by a U.S. trade mission
led by Donald Rumsfeld. If we are serious about banning this horrific
war crime, then the ban must be enforced. That is the duty of the
Security Council, under Chapter VII of the U.N. Charter. But the council
is stymied because Russia irresponsibly uses its “Great Power” veto to
protect its investment in Assad’s military rule. The responsibility to
protect Syria’s civilians against becoming victims of crimes by their
own state thus devolves upon regional organizations like NATO and the
Arab League.

That Assad and his generals are war criminals has been
clear ever since they gunned down the first thousand or so peaceful
protesters before the civil war started. Courageous protesters then held up
banners demanding “Assad to the Hague.” But the Security Council turned its
back on them. Not one of its members bothered to suggest that the situation
in Syria should be referred to the Prosecutor of the International Criminal
Court. Two years on, the civil war has claimed over 100,000 victims and
has no end in sight. Diplomacy and United Nations negotiations, from
Kofi Annan to Lakhdar Brahimi, have all failed. NATO strikes to punish
chemical-weapons use will not end this war and may have unforeseen
consequences. But at least such action will create the precedent that
should have been set at Halebja, providing a basis for deterring
dictators not only from using chemical weapons but also from stockpiling
them in the first place.

Geoffrey Robertson is a former U.N. appeals
judge and author of Crimes Against Humanity: The Struggle for Global Justice
(Penguin, and the New Press). His latest book is Mullahs without Mercy:
Human Right and Nuclear Weapons (Biteback/ Random House, 2012).

The
European Union, following the United States, this week imposed some
half-hearted sanctions – travel bans, money freezes and the like – on a
handful of President Assad's cronies, but not on Assad himself. This
will do nothing to change his regime's policy of murdering peaceful
protesters. They also imposed an arms ban, which will merely stop the
protesters from defending themselves.

The use of lethal force to
disperse a one-off demonstration, like Bloody Sunday, is not an
international crime. But a month of Bloody Sundays, the like of which, in
Syria, has produced more than 800 dead so far – is a different matter. It
counts as a crime against humanity, and it is now time for the Security
Council to refer President Assad and certain members of his family to the
International Criminal Court.

The uprisings against the Syrian regime do
not qualify for the humanitarian protections of the law of war: they do not
yet amount to an international armed conflict (although Iran is alleged to
be teaching them how to crush a protest movement) and have not even reached
the stage at which they can be legally classified as a civil war. The
government's actions do not attract the duty to intervene to stop
genocide, as the Syrian Muslin Brotherhood has claimed, because they are
directed against political dissidents, not opponents exterminated on
account of their race or ethnicity. However, a persistent brutal
crackdown on a protest movement does amount to a crime against humanity,
contrary to Article 7 of the ICC Treaty, if multiple acts of murder or
persecution are committed, pursuant to state policy, "as part of a
widespread or systematic attack against any civilian population". The
deliberate decision to use tanks, machine guns and snipers against
un-armed crowds, repeatedly over seven weeks, is clear evidence of the
commission of exactly such a crime.

President Bashar al-Assad bears
command responsibility for these killings and his exclusion from the
sanctions is ridiculous. It is no use anymore for Mr Hague to claim him as a
would-be reformer boxed in by hard-liners. Nor is he "the blind
ophthalmologist" (his previous profession) carried along by events. He made
the decision to stop the protests by lethal force in order to protect his
family's power and wealth from democratic challenge. His younger brother
Maher, who commands the army's Fourth mechanical division which committed
the Deraa atrocities, is another prime perpetrator together with relatives
who run his brutal secret police, (the Mukhabarat) and others from his
minority Alamite sect who are part of his inner circle. Even his wife, the
fragrant Queens College (Harley Street) educated Asma al-Assad, deserves
to be investigated as part of that circle. Credulous journalists on
women's magazines have extolled her charity and compassion, but she
remains in Syria, providing private aid and comfort to her brutal
husband. (In international criminal law, Caesar's wife is not above
suspicion).

The rules on the use of force and firearms during civil
arrest were settled by the UN in 1990. Armies and police must only resort to
lethal force when "absolutely necessary" in defence of themselves or others
against the threat of death or serious injury. They have a duty to act
proportionately to equip themselves with non-lethal incapacitating
weapons like water cannon and to use these first. They must respect and
preserve human life – for example by ensuring immediate medical
treatment for the injured and by punishing any official guilty of
arbitrary killing. "Internal political instability may not be invoked to
justify any departure from these basic principles" says the UN rules and
they apply "in the dispersal of assemblies that are unlawful but not
violent". Even in the case of violent demonstrations, lethal force may
be used only "when strictly unavoidable in order to protect
life".

The blatant breach of these basic principles by the Syrian
authorities has been accompanied by new forms of viciousness that require
international condemnation. As in Bahrain, the arrest of doctors and
nurses for performing their Hippocratic duties to attend the injured is
particularly deplorable. So too is the tactic of leaving dead bodies in
the street so their sight and stench will discourage others. Shooting or
arresting civilians for taking picture of army brutality on cell phones
or hand-held cameras – in the hope, no doubt, of providing evidence for
an international court– should also be deplored. Some seven thousand
citizens have already been arrested and placed in jails where torture is
alleged to be routine.

The regime has banned all foreign media from
the country – a tactic most recently deployed by the Sri Lankan government
to ensure that there would be no impartial eyewitnesses to its massacre of
Tamils. The Red Cross was allowed limited access, as it is in Syria, but
only because of its iron-clad promise to keep all its observations secret –
thus raising a serious question about its value in protecting civilians and
prisoners.

In these circumstances, of an ongoing crime against humanity,
the duty of the Security Council is to refer the situation in Syria to the
ICC prosecutor as it did with Darfur, and has recently done with Libya under
Resolution 1970. Sanctions will have little effect and the UN's Human
Rights Council (boasting such members as North Korea, Iran, Cuba and
Pakistan, as well as Russia and China) has already rejected a request by
the High Commissioner for Human Rights for a full-scale international
investigation. Instead, it is sending a "fact-finding" mission but
nothing more, because realpolitik dictates that Assad the Syrian tyrant
is safer than unpredictable developments which may follow his overthrow.
It is unlikely that the "fact finders" (who will not include
professional investigators or prosecutors), will find many people who
will dare to tell them the true facts, for fear of joining the eight
hundred dead and seven thousand already in prison.

This is a
weak-willed response that betrays the UN's "responsibility to protect"
doctrine. Nobody is suggesting "boots on the ground' in Damascus. At this
stage, an ICC referral would mean the collection of evidence by professional
investigators, whose work may well cause the ICC prosecutor to seek judicial
approval for the indictment of Assad and his commanders. The very existence
of an ICC inquiry would put pressure on the regime to reverse its "shoot to
kill" policy and if an indictment is judicially approved this would set an
important precedent for the rights of peaceful protesters, currently at risk
in Yemen, Bahrain, and elsewhere. Assad may not be seated in the Hague dock
any time soon, but if an indictment is in the offing, he may hesitate to add
to its counts. The possibility of justice is more likely to deter a bloody
tyrant than a travel ban on a few of his cronies.

Geoffrey Robertson
QC is a former UN judge and author of 'Crimes Against Humanity'
(Penguin)

EVANSTON, Ill. — THE latest
atrocities in the Syrian civil war, which has killed more than 100,000
people, demand an urgent response to deter further massacres and to punish
President Bashar al-Assad. But there is widespread confusion over the legal
basis for the use of force in these terrible circumstances. As a legal
matter, the Syrian government’s use of chemical weapons does not
automatically justify armed intervention by the United States.

There
are moral reasons for disregarding the law, and I believe the Obama
administration should intervene in Syria. But it should not pretend that
there is a legal justification in existing law. Secretary of State John
Kerry seemed to do just that on Monday, when he said of the use of chemical
weapons, “This international norm cannot be violated without consequences.”
His use of the word “norm,” instead of “law,” is telling.

Syria is a
party to neither the Biological Weapons Convention of 1972 nor the Chemical
Weapons Convention of 1993, and even if it were, the treaties rely on the
United Nations Security Council to enforce them — a major flaw. Syria is a
party to the Geneva Protocol, a 1925 treaty that bans the use of toxic gases
in wars. But this treaty was designed after World War I with international
war in mind, not internal conflicts.

What about the claim that, treaties
aside, chemical weapons are inherently prohibited? While some acts —
genocide, slavery and piracy — are considered unlawful regardless of
treaties, chemical weapons are not yet in this category. As many as 10
countries have stocks of chemical weapons today, with the largest held by
Russia and by the United States. Both countries are slowly destroying their
stockpiles, but missed what was supposed to be a final deadline last year
for doing so.

There is no doubt that Mr. Assad’s government has violated
humanitarian principles throughout the two-year-old war, including the
prohibition on the indiscriminate killing of civilians, even in
non-international conflicts, set out in 1949 in the Geneva Conventions. But
the conventions also don’t mean much unless the Security Council agrees to
act. It is an indictment of the current state of international law that
there is no universally recognized basis to intervene.

Arguably, the
key legal obligation of nations in the post-1945 world is adherence to the
United Nations Charter. It demands that states refrain “from the threat or
use of force against the territorial integrity or political independence of
any state.” The use of force is permitted when authorized by the Security
Council or for self-defense (and countries like Jordan and Turkey are
considering this route to justify joining an anti-Assad coalition) — but not
purely on humanitarian grounds.

Of course ethics, not only laws, should
guide policy decisions. Since the Rwandan genocide and the Balkan mass
killings of the 1990s, a movement has emerged in support of adding
humanitarian intervention as a third category of lawful war, under the
concept of the “responsibility to protect.” It is widely accepted by the
United Nations and most governments. It is not, however, in the charter, and
it lacks the force of law.

This was evident in Kosovo in 1999, when
NATO bombed Yugoslavia without United Nations authorization. Then, as now,
Russia and China were unwilling to grant Security Council approval. America
and its allies went ahead with what the Independent International Commission
on Kosovo later called an “illegal but legitimate” use of force. In that
case, NATO accepted implicitly that its act was illegal. It defended it in
moral and political language rather than legal terms.

Norms and
institutions of international criminal law, including 11 years of experience
with the International Criminal Court, have strengthened since then. Special
tribunals for Cambodia, Rwanda and the former Yugoslavia reflect a growing
consensus that perpetrators of atrocities should be punished.

But if
the White House takes international law seriously — as the State Department
does — it cannot try to have it both ways. It must either argue that an
“illegal but legitimate” intervention is better than doing nothing, or
assert that international law has changed — strategies that I call
“constructive noncompliance.” In the case of Syria, I vote for the
latter.

Since Russia and China won’t help, Mr. Obama and allied leaders
should declare that international law has evolved and that they don’t need
Security Council approval to intervene in Syria.

This would be
popular in many quarters, and I believe it’s the right thing to do. But if
the American government accepts that the rule of law is the foundation of
civilized society, it must be clear that this represents a new legal
path.

Ian Hurd, an associate professor of political science at
Northwestern, is the author of “After Anarchy: Legitimacy and Power in the
United Nations Security Council.”

The civilised world has the right, and duty, to intervene.
Failure may mean the mass murder of innocents.

As Colonel Gaddafi,
with his army and air force, his tribal supporters and his propaganda
machine, begins to counter-attack, only one thing is certain. He is a man
utterly without mercy. The history of his regime demonstrates how he deals
with opponents: hanging them from lamp-posts, sending death squads to
assassinate them as "stray dogs", killing them in their jail cells. His
offer of amnesty is not believable and will not, in any event, be believed
by the insurgents. Will the world stand idly by once he starts to deliver on
his threat to "fight to the last man and woman"?

The shadow of Iraq
invasion illegality has tainted talk of "liberal interventionism" -
unfairly, since George Bush was no liberal and Tony Blair has wrongly used
it as a retrospective excuse. There was no looming humanitarian crisis in
Iraq in March 2003, and the coalition of the over-willing (the US, with
Britain, Spain and Australia) explicitly ruled out this justification: they
claimed an entitlement to circumvent the United Nations Security Council
because of a convoluted reading of an earlier resolution and a bizarre "Bush
lawyer" claim to the right of self-defence against Saddam's imaginary
weapons for mass destruction (to be fair, Saddam imagined them
too).

The lesson of Iraq '03 is not that the US and its allies should
never use force against another country, but that never again should they do
so in breach of international law.

Which begs the big question,
namely the circumstances in which there is a right - or, more importantly, a
duty - to use force to relieve a humanitarian nightmare. The UN charter bans
"the use of force against territorial integrity or political independence of
any state" other than in individual or collective self-defence, or else with
Security Council authorisation after the council has determined that a
threat or a breach of the peace has occurred. Thereupon, the council may
"take such action - by air, sea or land - as may be necessary to maintain or
restore international peace or security".

This is clear, as far as it
goes, but the problem is that each of the "big five" has a Security Council
veto and China and Russia generally oppose intervention other than to
liberate invaded states (which was the case with Kuwait when it was invaded
by Saddam). China was intransigent, even when the people of East Timor were
being butchered by Indonesian-led militias as a reprisal for voting for
independence in the UN referendum. Many lives were lost until US president
Bill Clinton prevailed on the president of Indonesia to permit an
Australian-led "coalition of the willing" to enter what was Indonesia's
territory and restore order.

China is not always the only bad
Samaritan, however. Only when minutes of its secret session leaked did it
emerge that Britain - under John Major's government - had led the opposition
to intervention in Rwanda in 1993, which could have saved hundreds of
thousands of lives, by pretending that what was happening there was not
genocide.

In the case of Libya, the council has at least set an important
precedent by unanimously endorsing a reference of the situation in that
country to the International Criminal Court. If its prosecutor acts
quickly - the evidence against Gaddafi of inciting and using widespread
violence against civilians (a crime against humanity) is available on
television - then indictments will be handed down and warrants of arrest
will follow.

International justice, however, grinds slowly; it took
many years for Charles Taylor and Radovan Karadzic to appear in the dock,
which still awaits Mladic and Bashir. So what happens if the unarrested
Libyan indictees aggravate their crimes? If the Security Council in secret
session decides to do nothing (and the mere threat of a veto uttered by
one of the "big five" is usually enough reason for its inertia), does
international law permit others - such as the nice alliance of the North
Atlantic Treaty Organisation - to pick up the gauntlet?

In my view,
which is contested by some, there is now a narrowly proscribed international
law right for states to render assistance to innocent civilians battling for
their lives. Examples of such action are the Tanzanian invasion of Uganda to
overthrow Idi Amin; India's incursion to halt genocide and mass rapes in
Bangladesh; and the US takeover of Granada to stop the mayhem after Maurice
Bishop's murder.

These actions were, however, justified at the time on
dubious grounds of self-defence, and the chief objection to a broadly stated
"right of humanitarian intervention" without Security Council approval
remains that it is liable to be mistaken for "a right of ideological
intervention". Hitler demonstrated its danger of abuse when he invoked
it to justify the use of force to protect German minorities from alleged
brutality, first in Czechoslovakia and then in Poland.

But more
recent examples show that a rule of law that built on traditional defences
of necessity (excusing unlawful actions taken to prevent serious and
imminent peril) and distress (illegality permitted to protect life in an
emergency) allied to the European law principle of proportionality is
developing to allow "coalitions of the willing" to use appropriate force to
prevent a humanitarian catastrophe.

The two important precedents are the
"safe havens" operation by the US, Britain and France, invading northern
Iraq without specific Security Council authority to protect Kurds against
violent reprisals threatened by Saddam, and the NATO bombing of
Kosovo.

The defects in the Security Council require the acknowledgement
of a limited right, without its mandate, for an alliance such as NATO to use
force to stop the commission of crimes against humanity. That right
arises once the council has identified a situation as a threat to world
peace (and it has so identified Libya, by referring it unanimously to
the ICC prosecutor).

To be lawful, the intervention must be at the
request of potential victims, for the purpose of stopping crimes against
humanity and no mixed or ulterior motive, such as obtaining territory or
oil. It must be proportionate - no greater force than necessary to achieve a
reasonably obtainable objective. Subject to these preconditions, NATO's
intervention in a Libyan emergency would be lawful, unless or until it
was denounced by majority vote in the Security Council.

A rule of law
framed in this way may have to be invoked if vast numbers of people are not
to become victims of vengeance from a resurgent Gaddafi. International law
is not passed by any parliament: it "emerges" or "crystallises" from state
practice, conventions, the writings of jurists and the dictates of
collective conscience. The duty to stop the mass murder of innocents, as
best we can if they request our help, has crystallised sufficiently to make
the use of force by NATO not merely "legitimate" but lawful.

Geoffrey
Robertson, QC, is a member of the UN's justice council and author of Crimes
Against Humanity.

(5) Michael Kirby, for the UN, castigates North Korea
for Human Rights Violations

A panel of UN inspectors on
the human rights situation in North Korea wrapped up their 10-day stay in
Seoul on this Tuesday.

Before moving on to Japan, their next destination,
the three-member panel briefed reporters on their findings through their
collection of testimonies from North Korean defectors in Seoul.For more,
let's go live to Hwang Sung-hee at the Arirang News Center.Sung-hee, how
exactly was this investigation conducted by the UN panel?

The United
Nations' Commission of Inquiry, headed by Michael Kirby, has been in Seoul
since August 18th.

Since then, the three commissioners held public
hearings to collect testimonies from those who witnessed North Korea's
violation of human rights first hand.

During the five-day hearing,
the team met with around 50 North Korean defectors.This is the first day
of the hearing, where Shin Dong-hyuk, a well-known North Korean defector
turned human rights activist, offered his account of the North's crimes
against humanity.

"What is it that you saw when you were
five-years-old?"

"At political prisons, there are public executions twice
every year."

The commission said that through the hearings, they were
able to gather evidence of violations of human rights by North Korea, like
the existence of prison camps where conditions are inhumane.For
instance, here, prisoners are often required to live on rats, mice and
grasshoppers and are under constant torture.

Around 200-thousand people
are believed to be imprisoned in North Korea's prison camps today, where
they are malnourished or even worked to death.

The panel will be
collecting more testimonies and evidences in Japan and other countries. But
do they plan on visiting North Korea for on-site inspections?

That's
the problem.

The commission has asked the North Korean government
numerous times to visit the North for on-site investigations.

North
Korea has denied any human rights abuses, and has said that UN inspectors
will not be allowed on North Korean soil.

However, during the press
conference today, Michael Kirby, the chief commissioner of the UN panel,
said that his commission will continue to reach out to the North for access
to their country and promised to work with no preconceptions.

"The
best way for North Korea to respond to the type of evidence, which if left
unanswered is believable, even in some matters compelling, is for it to open
its doors, give access."

Before the press conference today, the North's
state-run Korean Central News Agency denounced the investigation, calling it
a scheme to overthrow their government.

Could these findings lead to
perhaps a criminal law suit against the North Korean
leadership?

Well, the commissioners stressed that they are not
prosecutors or judges.

They will be writing up a final report with all
the accounts that they've collected on North Korea's human rights
violations, and submit it to the United Nations in March next
year.

The commission will be drawing conclusions from the facts that
they've found and make recommendations.Some have pointed to the
possibility of North Korea leader Kim Jong-un being taken to the
International Criminal Court.

But the commissioners said that the
jurisdiction of the ICC is limited to the jurisdiction over people in
countries that have accepted its jurisdiction, something the North has not
done.

Nevertheless, there is an exceptional provision whereby the UN
Security Council can refer matters to the ICC even though the country may
not have accepted the jurisdiction, so the possibility is open.

You
said the final report will be due in March 2014. Do we have any idea what
the report will include?

The commission said they are trying to make
their final report as interesting as possible to grab the interest of the
international community.

They hinted that the report may be circulated in
digital, electronic and visual forms of vivid and succinct
testimonies.

The commissioners said that they are the eyes and ears of
the international community and said that they are obligated to try to get
the international community to understand the enormity of the
issue.

That was Arirang's Hwang Sung-hee on the United Nations' probe
into North Korea's human rights violations.

The
start of the trial in Prosecutor v. Ruto and Sang at the ICC has been
overshadowed by Kenya’s decision to withdraw from the ICC

September 14th,
2013

by Raphaelle Rafin by Dr Mis?a Zgonec-Roz?ej

Shorter version
of this comment is published at Chatham House

On Tuesday, 10 September
2013, the trial of Kenya’s Deputy President, William Ruto and his
co-accused, former radio presenter, Joshua Sang, began before the
International Criminal Court (ICC). The trial of Kenya’s President, Uhuru
Kenyatta, is scheduled to start on 12 November 2013. Just a week ago, on 5
September 2013, the Parliament of Kenya approved a motion for the withdrawal
of its membership from the ICC. If the bill is adopted, Kenya will become
the first State Party to withdraw from the Rome Statute of the
ICC.

Kenya’s withdrawal would thus have no effect on
the criminal proceedings against Kenyatta and Ruto which commenced prior to
the date when the withdrawal might become effective. Kenya would continue to
be under the obligation to fully cooperate with the ICC in connection with
the trials of its two leaders. But as soon as the withdrawal would come into
effect, it would preclude any investigation and prosecution of future
international crimes by the ICC.

Although a withdrawal of one State
as such should not greatly affect the ICC, Kenya’s termination of its ICC
membership might be of much greater significance. It would constitute a
withdrawal of one of the eight States the situations of which have been
referred to the ICC and one of the two States the investigation of which has
been triggered by the Prosecutor on his own initiative. It could potentially
encourage other States to consider their withdrawals, particularly those
States that have been under preliminary examination by the
Prosecutor.

The ICC, unlike domestic courts, has no police force so it
depends on States’ cooperation. If Kenya failed to comply with a request to
cooperate, the Court could refer the matter to the Assembly of States
Parties for further action. However, all the Assembly could do is to
recommend resolution of non-cooperation issues through diplomatic means,
such as through “good offices” intervention by the President of the
Assembly, the effectiveness of which remains questionable.

Kenya’s
efforts to stop the trials of Kenyatta and Ruto at the ICC

The decision
to end its membership at the ICC is yet another attempt by Kenya to prevent
the ICC from conducting effective proceedings against its leaders. While
arguing that it has been fully cooperating with the ICC, Kenya has attempted
a number of times to interfere with the ICC’s proceedings. For example,
Kenya successfully lobbied the African Union for the latter’s support for
the termination of the proceedings at the ICC and the referral of the cases
for trial in Kenya. In May 2013, Kenya requested the UN Security Council to
end the proceedings against its leaders, but the request has so far been
ignored.

The ICC is also facing serious challenges in two other
situations – Sudan and Libya – both referred to the ICC by the UN Security
Council. Apart from Sudan’s persistent refusal to arrest and surrender its
President Omar Al Bashir, States Parties such as Malawi and Chad had
breached their obligations of cooperation by failing to arrest Bashir
when her was on a visit to those countries. The ICC Judges have formally
reported those breaches to the Security Council, but the Security
Council has not yet taken any action. Similarly, the ICC’s authority
continues to be undermined by Libya’s refusal to surrender Saif Gaddafi
despite the Court’s repeated reminders that it is obliged to do so. The
Court recently rejected the request to suspend the order for the
surrender of Gaddafi pending the appeal of the admissibility decision,
in which the Pre-Trial Chamber found that Libya was unable genuinely to
carry out an investigation against Gaddafi and confirmed the
admissibility of the case against him.

Controversies concerning Ruto
and Kenyatta’s trials

The proceedings against the two leaders who are
charged with crimes against humanity committed during the post-election
violence in 2007 and 2008, which left more than 1,000 people dead and more
than half a million displaced, have been plagued by controversy. Charges
against two out of six original suspects were not confirmed due to a lack of
evidence. The investigation has been bedeviled by problems of witness
intimidation, bribery and disappearances. Due to security concerns, a
number of witnesses have withdrawn their cooperation with the ICC. The
accused, however, have been allowed to remain at liberty pending the
trial which allowed them to campaign freely in the run-up to 2013’s
presidential elections. The Prosecution, on the other hand, has been
criticized for its failure to comply with its disclosure obligations,
which resulted in the withdrawal of the charges against Kenyatta’s
co-accused, Francis Muthaura, the former head of Kenya’s civil service.
More recently the Nairobi High Court Judge reportedly decided to forbid
the media and the public from following the proceedings at the
ICC.

Although a person’s official position does not entitle him or her to
immunity from prosecution before the ICC, the ICC is facing a difficult
task in managing the conduct of the leaders’ trials in a way so as to
strike the right balance between their ability to perform their
functions and requirements of justice. The accused request to move the
venue of their trial from The Hague to either Kenya or Tanzania, using
the Rwanda Tribunal’s facilities, has been rejected by the Judges. In
their decision, the Judges took into account the security and cost of
holding proceedings outside The Hague, the potential impact on victims
and witnesses, as well as potential impact on the perception of the
Court. The accused have also requested for permission to be excused from
their continuous presence during the trial. If their request is approved
it would constitute a novelty in the practice of other international
criminal courts, which require that the accused attend the hearings and
stay in custody during the trial. Until the ICC renders a final decision
on the modalities of the trial, Ruto is required to be physically
present during the trial at the seat of the ICC in The Hague. Once
Kenyatta’s trial begins, the sittings in the two trials may be organized
in alternation so that the accused leaders are not away at the same
time.

Conclusion

The proceedings against Kenya’s leaders play an
important role in the assessment of the ICC’s effectiveness. If Kenya’s
efforts to undermine the proceedings against Ruto and Kenyatta prove
successful, the two trials may end up weakening the ICC’s authority and
could damage the ICC’s long-term ability to ensure international justice. It
is questionable whether the initiation of criminal proceedings relating to
a State outside Africa could enhance the ICC’s credibility, but it could
at least deflect accusations of bias on the part of the ICC against
African States and their leaders.

About Me

'Mission statement'.
I am convinced that jewish individuals and groups have an enormous influence on the world. The MSM are, for almost all people, the only source of information, and these are largely controlled by jewish people.
So there is a huge under-reporting on jewish influence in the world.
I see it as my mission to try to close this gap. To quote Henry Ford: "Corral the 50 wealthiest jews and there will be no wars." `(Thomas Friedman wrote the same in Haaretz, about the war against Iraq! See yellow marked area, blog 573)
If that is true, my mission must be very beneficial to humanity.